Friday, November 12, 2010
Ind. Decisions - Court of Appeals issues 8 today (and 15 NFP)
For publication opinions today (8):
In Leo Machine & Tool Inc., et al. v. Poe Volunteer Fire Dept. Inc., et al. , a 14-page opinion, the issue is whether Poe Fire Department is immune from liability under the Indiana Tort Claims Act, thereby denying Leo Machine’s Complaint for damages suffered as a result of a fire. Judge Riley writes:
Referencing the Indiana Tort Claims Act (ITCA), Leo Machine contends that the trial court erred in granting Poe Fire Department’s motion for summary judgment. Relying on Peavler v. Monroe Cnty Bd. of Comm’ns, 528 N.E.2d 40 (Ind. 1988), the seminal case on governmental immunity in Indiana, Leo Machine claims that the specific fire fighting strategy and excavation actions in this cause cannot be characterized as a discretionary function which is entitled to immunity. * * *In Jimmy Morris v. State of Indiana , the issue involves noncode language from 2001, which the Court refers to as a "savings" clause. The ILB will write on this opinion separately.
Prior to 1988, the issue of whether a governmental entity was immune from liability under the discretionary exception for claims of negligence in fighting a fire was a settled question. * * *
In 1988, however, our supreme court decided [Peavler], in which the discretionary/ministerial test was discarded in favor of the planning/operational test to determine the applicability of ITCA’s discretionary function exception. Under this new test, the court’s task is to “distinguish between decisions involving the formulation of basic policy, entitled to immunity, and decisions regarding only the execution or implementation of that policy, not entitlement to immunity.” * * *
[W]e conclude that Assistant Chief Klepper’s decision to employ Anderson’s excavator was a discretionary decision which is entitled to immunity pursuant to ITCA.
In Tracie Burton v. Donna Bridwell, et al., a 16-page opinion, Chief Judge Baker writes:
Appellant-plaintiff Tracie L. Burton (Tracie) appeals a jury verdict in her favor, claiming that the jury‘s determination that she was 50% at fault in an auto accident while riding as a passenger in a vehicle that her husband was driving was contrary to law. Tracie also contends that the damage award was inadequate because she was not compensated for all of the medical expenses that she incurred as a result of the accident.In Town of Avon v. West Central Conservancy District, et al. , a 23-page opinion, Chief Judge Baker writes:
We conclude that the jury erroneously attributed 50% fault to Tracie. However, the error was harmless, as the jury‘s gross damage award was less than the other driver‘s liability limits to which Tracie stipulated that her insurance company—appellee-defendant State Farm Mutual Automobile Insurance Company (State Farm)—was entitled to a setoff or credit. We also decline to set aside the damage award because it was within the bounds of the evidence that was presented at trial.
Thus, we affirm in part and reverse in part.
The Town of Avon (Avon) enacted an ordinance that purports to regulate a township and a conservancy district's ability to remove and sell groundwater that was located in a local park. The conservancy district and the township challenged the Ordinance's validity under the Home Rule Act1, alleging that Avon's control over the groundwater exceeded its scope of its authority. On the other hand, Avon asserted that it had the statutory authority to regulate the withdrawal of the water. The trial court declared the Ordinance invalid on several bases and this appeal ensues. * * *In R.H. v. State of Indiana , a 12-page opinion, Chief Judge Baker writes:
In light of our discussion above, we conclude that the trial court properly granted summary judgment in the appellees' favor and declared the Ordinance invalid. In particular, Avon lacks the express authority to regulate groundwater in aquifers under the Watercourse Statutes, the Home Rule Act does not grant Avon the authority to regulate in accordance with its inherent police powers, and Avon lacks the authority to review, regulate, or impose duties on the appellees' exercise of its power to sell the groundwater under the Park Resources Statute. Moreover, the Ordinance's limitation on the appellees' right to sell water is inconsistent with the DNR's regulation of groundwater and there is no statute expressly authorizing Avon to regulate the appellees' sale of the groundwater. Thus, Avon may not interfere with the appellees' common law right to use the groundwater in its aquifers as it sees fit.
In the instant case, we are asked to determine whether a juvenile court abused its discretion when it awarded guardianship of a juvenile who had been adjudicated a delinquent child to the Indiana Department of Correction (DOC). Although juvenile courts have a variety of placement options for juveniles who have delinquency problems, Indiana Code section 31-37-18-6 imposes one important restriction, namely, that a juvenile court select the least restrictive placement that is “consistent with the safety of the community and the best interest of the child.”In Michael McAllister, et al. v. Loretta A. Sanders, et al., an 11-page opinion, Judge Riley writes:
Appellant-respondent R.H. appeals the juvenile court’s disposition order awarding guardianship of him to the DOC, arguing that there was a less restrictive alternative available. Concluding that R.H.’s placement with the DOC is justified by the two instant adjudications, his behavior while in detention and on electronic monitoring, his pattern of inappropriate sexual conduct, and his family’s inability or refusal to address his inappropriate sexual conduct, we affirm the decision of the juvenile court.
The McAllisters and Zirkle argue that the trial court erred when it determined that Sanders had dedicated the disputed alley to the public through common law dedication. Specifically, they contend that because the dedication of the disputed alley had not been adequately accepted by a public authority, title to the disputed alley must remain with Sanders and her heirs. * * *Brian McNeill v. State of Indiana - "Sufficient evidence exists to support McNeill’s aggravated battery conviction, and we accordingly affirm."
Because there was no statutory dedication in this case, there may be a common law dedication. Two elements are required for common law dedication: (1) the intent of the owner to dedicate and (2) the acceptance of the public of the dedication. * * *
[B]ecause we determined that the disputed alley was dedicated to the public, the McAllisters and Zirkle cannot now argue that they have adversely possessed the alley to the exclusion of others.
Based on the foregoing, we conclude that the trial court did not err when it found that Sanders intended to make a common law dedication of the disputed alley and that the McAllisters and Zirkle had not acquired fee simple title by adverse possession. Affirmed.
Lucio Garcia v. State of Indiana - "Appellant-defendant Lucio Garcia appeals the denial of his petition for post-conviction relief. Garcia contends that the post-conviction court erroneously determined that he did not receive the ineffective assistance of trial and appellate counsel. Finding no error, we affirm."
NFP civil opinions today (2):
NFP criminal opinions today (13):
Posted by Marcia Oddi on November 12, 2010 11:53 AM
Posted to Ind. App.Ct. Decisions